303 Ga. 24 FINAL COPY
S17A1887. DE LA CRUZ v. THE STATE.
HUNSTEIN, Justice.
Appellant Eduardo De La Cruz was tried and convicted of the murder of
Brenda Gibbs.1 On appeal, Appellant claims four instances of trial court error
and two claims of error by the motion for new trial court. We affirm.
Viewed in a light most favorable to the jury’s verdict, the evidence
adduced at trial established that, at all relevant times, Appellant and the victim,
Brenda Gibbs, worked opposite shifts at the Production Anodizing plant in
Adel, Georgia. Though the two had a child together, their romantic relationship
was marred with a history of verbal, physical, and sexual assault. The State
1 Appellant was indicted by a Cook County grand jury on January 10, 1996, for one count of malice murder. After a jury trial from September 23-24, 1996, Appellant was found guilty and was subsequently sentenced on October 4, 1996, to life in prison. Appellant timely filed a motion for new trial on October 31, 1996, which was amended on February 12, 2016. After a hearing on the motion as amended, the trial court denied the same on February 10, 2017. Appellant timely filed a notice of appeal. This appeal was docketed to the August 2017 term of this Court and was thereafter submitted for a decision on the briefs. adduced testimony that Gibbs was afraid of Appellant and that, prior to her
murder, Appellant told Gibbs he should kill her, get the money from her life
insurance policy (of which he was the beneficiary), and take their child to
Mexico. Appellant repeated similar threats in the presence of co-workers.
At 9:00 p.m. on August 19, 1995, Appellant dropped Gibbs off at work
with a promise to pick her up after her shift ended at 5:00 the next morning.
Gibbs, her co-worker, Rodney Tippins, and a security guard were the only
people working at the plant that evening. A couple hours into their shift,
Tippins ran into Gibbs; she appeared as if she had just been crying, though she
would not tell Tippins what was wrong. Around 4:00 a.m. on August 20, the
security guard saw Gibbs and Appellant together in the laboratory where Gibbs
was working. Gibbs’ back was to Appellant and they were not talking.
A little after 5:00 a.m., Tippins and the security guard walked over to the
lab where they found Gibbs on the floor bloodied and unresponsive. She was
lying over a partially broken bar stool covered in blood, and a “t-shape” piece
of wood with nails was lodged in her head. Meanwhile, Appellant had failed to
return to the plant to pick up Gibbs as previously promised.
2 While processing the scene, law enforcement found a broken two-by-four
and a metal conduit pipe, both of which were covered in blood. Phosphoric acid
had also dripped onto the floor from a broken glass container. Officers collected
samples from the blood spatter on the cabinets and walls, as well as a black hair
from Gibbs’ shirt and a fingerprint from the pipe. During the autopsy, the
medical examiner found defensive wounds on Gibbs’ hands and arms and
opined that Gibbs died from blunt force trauma to the head, likely caused by
being hit with either the two-by-four or conduit pipe. The medical examiner
also clipped the victim’s fingernails and preserved them for potential testing.
Appellant spoke with law enforcement and denied having any
involvement in Gibbs’ murder. Officers later searched Appellant’s home and
car, during which they collected a pair of Appellant’s tennis shoes; the soles of
the shoes fluoresced under a black light. The lead detective, who had been
present at the crime scene and walked through the phosphoric acid on the floor,
ran his shoes under the same black light and they also fluoresced. The detective
checked his shoes against the shoes of other individuals who did not walk the
crime scene; the soles of their shoes did not have the same reaction. The State
3 also adduced evidence that plant employees were required to wear steel toed
shoes and a cover suit to protect their clothes while in the lab.
Appellant called three witnesses in his defense, including an alibi witness.
1. Though not enumerated by Appellant, we find that the evidence as
summarized above was sufficient to enable a rational trier of fact to conclude
beyond a reasonable doubt that Appellant was guilty of the crime for which he
was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
(1979).
Trial Court Claims
2. At Appellant’s pre-trial probable cause hearing, Appellant called
Jose Andres to testify for the defense as an alibi witness. Andres testified, inter
alia, that, on the night before the murder, he saw Appellant and the victim
together laughing, talking, and kissing. Andres testified that he remained with
Appellant until midnight that evening. Andres was then subjected to a thorough
and sifting cross-examination by the State. When Andres was unavailable to be
called as a witness at trial, the defense sought to read the witness’ prior sworn
4 testimony to the jury. The trial court denied this request. Appellant alleges this
was an abuse of discretion. We disagree.
Under our old Evidence Code,
[t]estimony given by an “inaccessible” witness under oath in a former proceeding on substantially the same issue and between the same parties [was] admissible under [former] OCGA § 24-3-10. [Cit.] “The inaccessibility of a witness under [former] OCGA § 24- 3-10 depend[ed] upon a showing by the party seeking to use the witness’ former testimony that he ha[d] used due diligence in trying to locate and bring to court the absent witness.” [Cit.]
(Punctuation omitted.) Thomas v. State, 290 Ga. 653, 657 (723 SE2d 885)
(2012). Georgia courts have been “fairly strict in requiring proof of sustained
efforts by parties to locate the witness in question before allowing the admission
of such testimony.” (Citation and punctuation omitted.) Hill v. State, 291 Ga.
160, 163 (728 SE2d 225) (2012). Indeed, “due diligence requires more than a
few phone calls,” and a “party must make a serious, competent effort to find and
bring the witness to court.” (Citation and punctuation omitted.) Id. “Whether
a witness is inaccessible within the meaning of [former] § 24-3-10 is a decision
left to the discretion of the trial court, which will not be reversed absent manifest
abuse.” (Citation and punctuation omitted.) Thomas, 290 Ga. at 657.
5 Here, the morning of trial, defense counsel informed the trial court that
Andres was “out of [the] country” and, therefore, not subject to the trial court’s
subpoena power. Counsel continued,
We don’t even know where he is. He is somewhere around Acapulco, Mexico; western Mexico. We have made every diligent effort that we could make to try to get his whereabouts. I’ve had members of [Appellant’s] family trying to find him, making inquiries, trying to locate him. We cannot get him. We cannot find him.
A witness who has permanently moved to a foreign country is unavailable
within the meaning of former OCGA § 24-3-10. See also Mancusi v. Stubbs,
408 U.S. 204, 212-213 (92 SCt 2308, 33 LE2d 293) (1972). Here, however,
Appellant did not provide the trial court with evidence that Andres had moved
to Mexico; nor did he say when efforts to locate Andres had begun or what
efforts had been made to subpoena Andres at his last known residence in
Georgia as provided for in former OCGA § 24-10-23. Instead, he merely stated
that Andres was “out of [the] country.” Without evidence that Andres had
moved to another country, thereby permanently placing himself beyond the
subpoena power of the trial court, Appellant did not establish the required
showing of due diligence to support a finding of unavailability. Mancusi, 408
6 U.S. at 212-213. See also Jones v. State, 250 Ga. 166 (2) (296 SE2d 598)
(1982).
However, even assuming Appellant had sufficiently shown Andres’
unavailability, the trial court’s exclusion of the prior testimony was harmless.
Because Andres was only with Appellant until midnight the night of Gibbs’
death, he could not have provided Appellant with an alibi for the time of Gibbs’
murder which, based upon the evidence, occurred sometime between 4:00 and
5:00 a.m. on August 20. Moreover, Andres’ prior sworn testimony would have
been cumulative of Appellant’s other alibi witness who testified at trial that he
was with Appellant from 9:15 p.m. to 11:30 p.m. on August 19, and then from
1:30 a.m. until approximately 4:30 a.m. on August 20. Finally, though Andres
could have testified that Appellant and the victim were “laughing and kissing”
before Appellant dropped her off at work, the evidence of Appellant’s prior
abuse toward the victim, as well as his numerous statements that he wished her
dead, were overwhelming. Therefore, the trial court did not commit reversible
error in denying Appellant’s request to read Andres’ prior sworn testimony to
the jury.
7 3. The morning of trial, the State moved the trial court to prohibit
Appellant from presenting evidence that another individual, Otis Sanders, had
actually committed the murder. Specifically, the State asked the trial court to
prevent defense counsel from calling Linda Leriche who, ostensibly, would have
testified that Sanders provided a false alibi to law enforcement for the time of
the murder, that he physically abused Leriche, and that Sanders drove Leriche
to the plant on some unknown date before Gibbs’ death and threatened to kill
Leriche. The trial court granted the State’s motion in limine, which Appellant
contends was error. We disagree.
It is well established that
a defendant is entitled to introduce relevant and admissible testimony tending to show that another person committed the crime for which the defendant is tried. However, the proffered evidence must raise a reasonable inference of the defendant’s innocence, and must directly connect the other person with the corpus delicti, or show that the other person has recently committed a crime of the same or similar nature.
(Citations omitted.) Gilreath v. State, 298 Ga. 670, 673 (784 SE2d 388) (2016).
“[A] reasonable inference of the defendant’s innocence [is] raised by evidence
that render[s] the desired inference more probable than the inference would be
without the evidence.” Oree v. State, 280 Ga. 588, 593 (630 SE2d 390) (2006).
8 However, “[e]vidence that merely casts a bare suspicion on another or ‘raises a
conjectural inference as to the commission of the crime by another is not
admissible.’” (Citations omitted.) Curry v. State, 291 Ga. 446, 453 (729 SE2d
370) (2012).
Neither Sanders’ alleged assault of Leriche at some unknown time in the
past nor his providing law enforcement with an alleged false alibi for the night
of the murder directly connects him to the corpus delicti. Moreover, the
proffered evidence does not raise a reasonable inference of Appellant’s
innocence as there is no evidence that Sanders was at the plant on the night of
Gibbs’ murder. Compare Gilreath, 298 Ga. at (2) (trial court abused its
discretion by prohibiting defendant from questioning individual about prior
allegation of child abuse where individual was the only other adult in the home
on day child victim’s death occurred, and the proffered evidence would have
raised a reasonable inference of defendant’s innocence); Scott v. State, 281 Ga.
373 (3) (637 SE2d 652) (2006) (same). Indeed, the proffered evidence, at best,
casts a bare suspicion on Sanders. Accordingly, we find no error.
4. Appellant also argues that the trial court erred in determining that
9 the hearsay statements from the victim regarding prior instances of abuse were
admissible under the necessity exception. Specifically, Appellant alleges that
the admission of hearsay testimony through Rodney Tippins and Denise De La
Cruz was an abuse of discretion because their testimony lacked sufficient indicia
of trustworthiness. As an initial matter, Tippins’ testimony regarding the
tumultuous relationship between Appellant and Gibbs was based purely upon
his observation of the couple, not based upon anything Gibbs told Tippins. Such
testimony does not qualify as hearsay; accordingly, this portion of Appellant’s
claim fails.
Regarding hearsay testimony admitted through Denise De La Cruz, our
old Evidence Code provided
three basic requirements for the admission of hearsay under the necessity exception: (1) the declarant of the statement is “unavailable,” (2) the declarant’s statement “is relevant to a material fact and . . . more probative on that material fact than other evidence that may be procured and offered,” and (3) the statement exhibits specific indicia of reliability.
(Citations omitted.) Mills v. State, 287 Ga. 828, 831 (700 SE2d 544) (2010).
The test for trustworthiness considers the totality of the circumstances under
which the statements were made. Gibson v. State, 290 Ga. 6 (3) (717 SE2d 447)
10 (2011). “Whether a statement is trustworthy is a matter for the trial court’s
discretion, and the exercise of such discretion will not be overturned absent an
abuse of discretion.” Id. at 8.
The record shows that Gibbs and Denise De La Cruz were close friends
and that Gibbs confided in her details about her abusive relationship with
Appellant. Many times these statements were corroborated either by physical
evidence of violence observed by Denise De La Cruz, such as bruising, or
Appellant’s own comments regarding his hatred of Gibbs and his desire that she
would die. Accordingly, we conclude that the trial court did not abuse its
discretion by admitting the testimony of Denise De La Cruz pursuant to the
necessity exception.
5. During its case-in-chief, the State called Officer Jeremy Rowe to
testify about Appellant’s custodial interview. While on direct examination,
Officer Rowe testified that he knew Appellant committed the murder because
Appellant had lied during his interview. Appellant objected, asserting that this
testimony went to the ultimate issue of the case. The trial judge sustained the
objection. After the defense rested its case-in-chief, Appellant moved for a
11 mistrial based upon Officer Rowe’s prior testimony; the trial court denied the
motion.
Appellant contends that the trial court abused its discretion by denying his
motion for mistrial. “A motion for mistrial must be promptly made as soon as
the party is aware of the matter giving rise to the motion.” (Citation and
punctuation omitted.) Ragan v. State, 299 Ga. 828, 833 (3) (792 SE2d 342)
(2016). Here, the record shows that trial counsel completed his cross-
examination of Officer Rowe, allowed the State to rest its case, called three
witnesses in the defense’s case-in-chief and then rested before moving for a
mistrial based upon the officer’s direct examination testimony. Because counsel
did not timely move for a mistrial, this issue is not properly preserved for
review. See Burrell v. State, 301 Ga. 21 (5) (799 SE2d 181) (2017).
Post-Trial Claims
6. Next, Appellant argues that the 21-year delay between his
conviction and the hearing on his motion for new trial violated his right to due
12 process. This Court has previously recognized “‘that substantial delays during
the criminal appellate process implicate due process rights.’” Payne v. State,
289 Ga. 691, 693 (715 SE2d 104) (2011) (citing Chatman v. Mancill, 280 Ga.
253, 256 (626 SE2d 102) (2006)). We assess such claims pursuant to the four
factor analysis utilized for speedy trial claims set forth in Barker v. Wingo.2
Glover v. State, 291 Ga. 152 (3) (728 SE2d 221) (2012). In doing so, “we must
accept the factual findings of the trial court unless they are clearly erroneous,
and we must accept the ultimate conclusion of the trial court unless it amounts
to an abuse of discretion.” (Citations omitted.) State v. Buckner, 292 Ga. 390,
391 (738 SE2d 65) (2013). With these principles in mind, we review the record
and Appellant’s claim.
(i) Length of delay. Here, almost 21 years passed between Appellant’s
conviction and his motion for new trial hearing. We accept the motion for new
trial court’s determination that this lengthy delay was excessive and must be 2 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972).
13 weighed against the State in the first prong of the Barker analysis. See State v.
Porter, 288 Ga. 524 (2) (c) (2) (705 SE2d 636) (2011).
(ii) Reasons for the delay. As to the second prong, the motion for new
trial court attributed the lengthy delay to Appellant’s actions. This finding, we
conclude, was error in that the record indicates that both parties are at fault for
the delay. This case has a convoluted post-conviction history, which includes
the appearance and withdrawal of four different attorneys who represented
Appellant during the first 10 years of his pending motion for new trial. During
that time, the record shows that transcripts and other materials were sent to
Appellant’s various attorneys, but none appear to have done any work on his
appeal. However, the record is silent as to why so many attorneys represented
Appellant during this period of time and why nothing of substance was done
during their representation. When there is no explanation in the record as to
why nothing occurred in Appellant’s case while his motion for new trial was
pending, we are required to attribute the delay to the State. See Glover, 291 Ga.
at (3).
Notably, after Appellant’s last attorney withdrew in 2006, he was pro se
until new counsel filed a notice of appearance in 2012. Appellant filed nothing
14 during this six-year hiatus in representation. Additionally, once new counsel
entered the case in 2012, they pursued a motion for post-conviction DNA
testing, instead of Appellant’s motion for new trial which, they acknowledged,
had been pending for approximately 17 years. Still, counsel proceeded with the
DNA motion, and subsequently filed an interlocutory appeal from the denial of
the same but, inexplicably, did not pursue the much older pending motion for
new trial until May 2016. Consequently, this portion of the delay seems
attributable to Appellant. Still, after weighing all of the evidence in the record,
this factor counts against the State, though with less weight as the delay does not
appear to have been designed to deliberately sabotage Appellant’s case. See
Leslie v. State, 301 Ga. 882 (2) (b) (ii) (804 SE2d 351) (2017); Ruffin v. State,
284 Ga. 52, 60 (663 SE2d 189) (2008).
(iii) Defendant’s assertion of the right. We also agree with the motion
for new trial court that Appellant failed to assert his appellate rights for much
of the 21-year delay. Payne, 289 Ga. at (2) (b). Indeed, in the 6 year period
when Appellant was representing himself, nothing was filed. Aside from
Appellant’s one letter sent to the trial court in May 1999 requesting his docket
15 sheet and the name of his attorney, Appellant did not write to the court to
complain about the delay or request that his appeal be pursued. Moreover, he
did not assert that his due process rights had been violated until current counsel
amended Appellant’s motion for new trial in February 2016, finally asserting
that there had been an excessive delay. Accordingly, this factor, as the motion
for new trial court properly found, weighs heavily against Appellant.
(iv) Prejudice. “Even assuming that the first three Barker factors –
length of the delay, the reason for the delay, and the defendant’s assertion of his
right – weigh in favor of [Appellant], his due process claim nevertheless fails
because [Appellant] failed to show that he was prejudiced by the delay.” Veal
v. State, 301 Ga. 161, 167 (800 SE2d 325) (2017). The record supports the
motion for new trial court’s finding that Appellant failed to adduce any evidence
to show actual “prejudice to [Appellant’s] ability to . . . assert his arguments on
appeal” so that there is a “reasonable probability that, but for the delay, the
result of [this] appeal would have been different.” (Citation and punctuation
omitted.) Chatman, 280 Ga. at 260. Therefore, this factor does not measurably
favor Appellant.
16 Based on the foregoing, we conclude that the delay in resolving
Appellant’s motion for new trial did not violate his right to due process.
“[E]ven if the trial court had properly weighed the second factor lightly against
the government, it was incumbent upon the trial court to find no constitutional
error given appellant’s long delay in asserting his right to a speedy trial and his
failure to demonstrate prejudice.” Dillard v. State, 297 Ga. 756, 763 (778 SE2d
184) (2015). See also State v. Johnson, 291 Ga. 863, 868 (734 SE2d 12) (2012).
“While we do not approve of the delay occasioned here, we (nonetheless find
that) the [motion for new] trial court did not abuse its discretion in ruling that
[Appellant’s] due process claim must fail.” (Citations omitted.) Glover, 291 Ga.
at 156.
7. On January 6, 2014, Appellant filed a motion for post-conviction
DNA testing requesting that the victim’s fingernail clippings, the two-by-four,
the conduit pipe, and the hair collected from the victim’s body at the scene be
tested for “touch DNA,” or DNA recovered from skin cells that may be left by
a person after touching an item. Following a hearing, the trial court denied the
motion. Appellant alleges that this was error.
17 OCGA § 5-5-41 (c), the statute that controls motions for post-conviction
DNA testing, states, in pertinent part, that
(1) . . . a person convicted of a felony may file a written motion before the trial court that entered the judgment of conviction in his or her case for the performance of forensic deoxyribonucleic acid (DNA) testing. ... (3) The motion shall be verified by the petitioner and shall show or provide the following: (A) Evidence that potentially contains deoxyribonucleic acid (DNA) was obtained in relation to the crime and subsequent indictment, which resulted in his or her conviction; (B) The evidence was not subjected to the requested DNA testing because the existence of the evidence was unknown to the petitioner or to the petitioner’s trial attorney prior to trial or because the technology for the testing was not available at the time of trial; (C) The identity of the perpetrator was, or should have been, a significant issue in the case; [and] (D) The requested DNA testing would raise a reasonable probability that the petitioner would have been acquitted if the results of DNA testing had been available at the time of conviction, in light of all the evidence in the case; …
Id.
Appellant may be entitled to post-conviction DNA testing if he meets all
of the statutory requirements listed in OCGA § 5-5-41 (c) (3), (4)3 and (7)4. See 3 The petitioner shall state: (A) That the motion is not filed for the purpose of delay; and 18 OCGA § 5-5-41 (6) (A) and (7); Crawford v. State, 278 Ga. 95 (2) (b) (597
SE2d 403) (2004); Williams v. State, 289 Ga. App. 856, 856 (658 SE2d 446)
(2008).
(B) That the issue was not raised by the petitioner or the requested DNA testing was not ordered in a prior proceeding in the courts of this state or the United States.
OCGA § 5-5-41 (c) (4). 4 The court shall grant the motion for DNA testing if it determines that the petitioner has met the requirements set forth in paragraphs (3) and (4) of this subsection and that all of the following have been established: (A) The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion; (B) The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; (C) The evidence was not tested previously or, if tested previously, the requested DNA test would provide results that are reasonably more discriminating or probative of the identity of the perpetrator than prior test results; (D) The motion is not made for the purpose of delay; (E) The identity of the perpetrator of the crime was a significant issue in the case; (F) The testing requested employs a scientific method that has reached a scientific state of verifiable certainty such that the procedure rests upon the laws of nature; and (G) The petitioner has made a prima facie showing that the evidence sought to be tested is material to the issue of the petitioner's identity as the perpetrator of, or accomplice to, the crime, aggravating circumstance, or similar transaction that resulted in the conviction.
OCGA § 5-5-41 (c) (7).
19 Here, the motion for new trial court properly denied Appellant’s motion
as his request failed to meet OCGA § 5-5-41 (c) (3) (D).5 At trial, the jury was
informed that: all of the blood collected and tested from the crime scene was
traced back to the victim; the fingerprint found on the conduit pipe did not
match Appellant’s fingerprint; and the hair obtained from the scene was
determined to be unsuitable for comparison. Because the jury was informed that
there was no physical evidence linking Appellant to the crime scene, and in light
of all of the evidence presented at trial, the motion for new trial court properly
found that Appellant failed to show a reasonable probability that he would have
been acquitted had the DNA results been available at the time of trial. See
OCGA § 5-5-41 (c) (3) (D).
Consequently, the motion for new trial court did not err in denying 5 Though the parties do not argue this point, we are not convinced that this case involved a request to test evidence that “was unknown to the petitioner or to the petitioner’s trial attorney prior to trial or because the technology for the testing was not available at the time of trial.” See OCGA § 5-5-41 (c) (3) (B). Not only did Appellant know about all of the physical evidence prior to trial, but everything except for the hair was introduced for the jury’s consideration. Moreover, though Appellant argued both at the post-conviction hearing and in his supporting briefs that the technology to test for touch DNA was not available at the time of his trial, Appellant failed to adduce evidence establishing this fact with respect to the conduit pipe, the two-by-four and the fingernail clippings. Indeed, the only testimony that addressed the issue of the availability of the technology for testing was elicited by the State on cross-examination, and it was limited to the root and mitochondrial testing of the hair. 20 Appellant’s post-conviction motion for DNA testing.
Judgment affirmed. All the Justices concur.
21 Decided February 5, 2018.
Murder. Cook Superior Court. Before Judge Perkins.
Alston & Bird, Mary T. Benton, Derin B. Dickerson, Tejas S. Patel, Kacy
Brake, Emily C. Hootkins, Andrew J. Liebler, Andrew M. Brown; Francisco
Gonzalez-Burgos, for appellant.
Richard L. Perryman III, District Attorney, J. Allen Lawson, Bianca P.
Goodman, Assistant District Attorneys; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Mary C. Greaber, Elizabeth H. Brock, Assistant
Attorneys General, for appellee.